Localism Bill

My Lords, I shall also speak to Amendments 133A to 133C and Amendment 181A, which are in my name. I should perhaps apologise to the Minister and her officials for having given them relatively little time to consider these amendments. I will of course understand if she is not yet in a position to respond substantively to all of these amendments, but I should be grateful if she would undertake at least to consider them and perhaps respond in due course. These amendments are grouped together because they all deal with the application of the Freedom of Information Act to bodies being given greater powers under this Bill and are all informed by the principle that with greater power should come greater accountability. It is a principle which of course, chimes with the coalition agreement. As I am sure the Minister will not need me to remind her, it states: "““We will extend the scope of the Freedom of Information Act to provide greater transparency””." Amendment 52A is my attempt to deal with the issue raised by the amendments which have just been discussed. It is designed to try to increase the transparency of local authority agreements. For those authorities operating executive agreements new regulations are to be made, as the Minister has just said, governing the circumstances in which meetings and documents must be open to the public. I take it that the assumption behind these provisions is that the new regulations will be brought into force before or at the same time as the new executive arrangements take place. However, if that does not happen and new executive arrangements come into force before the proposed regulations, the default position will be that an executive will be free to decide for itself which of its meetings are to be open to the public and which are to be held in private. In theory, at least, executives would be free to hold all their meetings in private if they so chose. Amendment 52A reverses that default position. In the absence of regulations—with the best will in the world, regulations do not always appear when Ministers intend— this amendment ensures that all meetings of the executive or its committee would have to be held in public. In my view, that is a better default arrangement than one which permits executives to exclude the public from all of their meetings and operate entirely in private until such regulations are made. Clearly, this is not the most fundamental safeguard of openness and, as my noble friend Lord Beecham and the noble Lord, Lord Shipley, have said, it is difficult to get the wording right on this issue. Everything will depend on the provision of the regulations that are to come. However, as I understand they are not available yet, even in draft, it is difficult at this stage of the proceedings to comment further. However, I hope that this amendment will be at least a start in bringing transparency to such proceedings. Amendments 133A to 133C set out to improve the transparency of services delivered by a local authority through others. The Bill envisages that a growing proportion of local authorities’ functions will be carried out for them by other bodies operating under contract. Amendment 133A deals with what information the public can obtain under the Freedom of Information Act about the work done for an authority under contract. If the authority carries out the work itself, all information about that work is subject to the Act but the public's rights to information are less straightforward when the work is done by a contractor. Section 1 of the Freedom of Information Act establishes that the right of access is to information which a public authority holds. Section 3(2)(b) of the Act provides that information which another person holds, "““on behalf of the authority””," is treated as being held by the authority itself. However, how much of the information that a contractor holds about the contract is held on behalf of an authority? The answer is not self-evident. The contract itself may specify that particular information is to be treated as held on behalf of the authority or that a specified type of information must be provided to the authority, if it asks for it to help it answer a freedom of information request. Yet what if such a provision applies only to a very limited class of information? The effect may be then to exclude from access any information which is not specifically mentioned. For example, in 2007, Islington Council received a freedom of information request for information about the criteria used to reward parking attendants for good results. I am sure that noble Lords will know that this is an electrically sensitive issue for many motorists in London and elsewhere in the country. The parking attendants were employed by National Car Parks Ltd under a contract with the council. The rewards included bonus performance payments and points that could be spent at Argos. The requestor wanted anonymised information about the rewards provided to the best performing parking attendants, including the number of penalty charge notices issued by them, the number of complaints involving those attendants and the number of notices subsequently cancelled. The requestor clearly suspected that the incentives were leading attendants to issue as many notices as they possibly could, regardless of any justification—clearly, a matter of considerable public interest. The council replied that it did not hold such statistics and that the contract did not give it the power to obtain them from the contractor. The Information Commissioner then examined the contract in force at the time and found that it imposed no requirement on National Car Parks to provide statistical information about the Argos points, the performance payments to individual staff or the criteria used to decide who should receive these. He concluded that this information was not held on the council's behalf and not accessible to it under the Freedom of Information Act, yet that information was central to any attempt to understand whether the incentives were encouraging notices to be issued improperly. That is exactly the kind of problem that may occur when people attempt to use the Freedom of Information Act to obtain information about contracts. Amendment 133A attempts to deal with this issue by stating that any new contract entered into in future by a local authority will be ““deemed to include a”” contractual ““freedom of information provision””. It stipulates that all information about the performance of the contract which is held by the contractor is, "““deemed to be held on behalf of the … authority for the purpose of … the Freedom of Information Act””." Incidentally, this would also apply to the Environmental Information Regulations, which provide a parallel right of access to environmental information. If such a request for information is made about the performance of the contract, that information would be within the scope of the legislation, even if held by the contractor. No confidentiality clause would be capable of setting that provision aside. The intention is that the public's right to information—that right to ““greater transparency”” included in the coalition agreement—should be the same whether a particular task was carried out in-house or contracted out. I should stress that this does not mean that such information will have to be disclosed. The Freedom of Information Act and the regulations contain exemptions to protect legitimate interests. For example, Section 43 protects trade secrets or information likely to prejudice the commercial interests of the contractor or the authority, subject, of course, to a public interest test. Section 40 protects personal information about any identifiable individual, including members of the contractor’s staff, if disclosure would breach data protection principles, and there are other exemptions where disclosure would be likely to endanger health and safety or prejudice law enforcement or defence, or cause other types of harm. I stress that this amendment applies only to contracts made in future. It would not be limited to those resulting from the community right to challenge provisions, but it would apply to any new contact. Where the contract itself is performed under a subcontract with a further contractor, the same freedom of information provision would be deemed to apply to the subcontract. Where a third party holds information on behalf of the contractor or subcontractor—for example, a surveyor or an engineer—that information is also deemed to be within the range of a FOI request to the authority. The amendment does not seek to bring the contractor itself with the scope of the Freedom of Information Act. Requests would still be made to the local authority concerned and not to the contractor itself. In answering the request, the authority would be able to draw on any information about the contractor’s performance held by the contractor in addition to the information that the authority itself held. The code of practice issued by the Secretary of State under Section 45 of the FOI Act encourages public authorities to consult third parties, such as contractors, before disclosing information relating to them, and such provision will continue under this amendment. There is one important exception to this principle. Legal advice that the contractor has obtained in relation to its obligations to the authority under the contract would not have to be disclosed to the authority under the provision and nor would a subcontractor have to disclose its legal advice about its obligations towards the contractor. Such privileged material about a possible legal dispute would not have to be disclosed. I hope the Minister will recognise that I have tried to frame this amendment in a way that makes it not disproportionately onerous on contractors. It is not the intention of this amendment to impose a disproportionate burden on very small businesses, so I would quite understand if the Government wished to look at the detailed wording of this amendment—for example, perhaps to place a limit on the size of the contract that would fall within scope of this amendment —and certainly to consult small business organisations on where such a limit would be placed. However, at this stage, I would be grateful if the Minister would at least indicate whether the Government might have some sympathy with the principle of greater transparency that lies behind this amendment. Amendment 133B would bring companies controlled by local authorities within the scope of the Freedom of Information Act. At present, the Act applies not only to the public authorities listed in Schedule 1 to the Act, but to companies owned by such public authorities. The existing definition of a publicly owned company in Section 6 of the Act is a company which is wholly owned by a single public authority. The Protection of Freedoms Bill, which is currently being considered in another place, would extend that definition to cover a company which is wholly owned by more than one public authority. That is a very welcome provision. It puts right a long-standing anomaly. When I was the Freedom of Information Minister, it was an anomaly that I intended to put right myself, but time ran out, so I am very pleased that the Government are bringing this provision forward in that Bill. However, a company that is jointly owned by a public authority and some other body, perhaps a private company, is not subject to the FOI Act at all, even where the public authority is the dominant shareholder. Amendment 133B would bring such companies within the Act's scope. A company in which a local authority owns at least 50 per cent of the shares—again, the Government may want to look at the detailed wording of this amendment, the proportion and exactly how the scope of the amendment should apply—or in which several local authorities between them hold at least 50 per cent of the shares would be subject to the Freedom of Information Act. I think this is fully in the spirit of what the Government are already undertaking in the Protection of Freedoms Bill and is something that ought to be able to command consensus across Parliament in putting right what has been a long-standing anomaly. Amendment 133C is designed to provide greater transparency for the way in which local authorities discharge their responsibilities under the Freedom of Information Act. For central government, the regular publication of statistics in monitoring central government compliance with the Freedom of Information Act has been important in driving up government compliance with legislation. Local government is not subject to the same requirement, and it is clear that its performance is variable. There are some excellent examples of good practice. I shall cite the Association of Greater Manchester Authorities. It covers 13 local authorities and has a system in place which allows individual local authorities to input on to shared web pages information on: the number of requests received; a breakdown of those requests; the outcomes of those requests; the number of internal reviews; the number of appeals to the ICO; and the length of time taken to deal with each request. The web pages were simple to create and set up using an off-the-shelf IT package and host spreadsheets into which local authorities can input information. It is an excellent example of good practice, but not every local authority matches those high standards. Many of the issues which most concern people and about which voters most want information fall within the remit of local authorities, and it is clear that there are still some local authorities where the reflex position is to withhold information rather than to publish it. I shall give one brief example from the constituency I used to represent. From the early years of the last decade, there was a growing and desperate need for a local primary school in the area of Oakhurst in north Swindon. Increasing numbers of local parents were desperate for a local primary school. They were having to travel many miles to get their children into a school, siblings were being separated and they were increasingly desperate. Land had been zoned for a local primary school, and the local authority said it wanted to build it but that the Government had not given it the money to do so. So when in 2007 the Government announced a massive increase in capital funding for schools and an allocation of £52 million for Swindon, I said to the council: ““Now you’ve got the money, you can finally commit to building this desperately needed primary school””. I also said that if there were any doubts about the nature of the funding, it should contact me and I would clarify it with Ministers. No one asked me to do that, but what happened was that in January 2008, an officer produced a report saying that the council did not have £52 million and could allocate only £1.8 million to building a primary school and that as the cost would be £7 million, it could not possibly build this desperately needed school. Not a single member of the cabinet in the council challenged this extraordinary discrepancy between what the Government had said was available and what the officer said was available. It was just accepted. I immediately went to Ministers, as I originally offered to do, and within three hours got clarification that however you construed the funding, the council had at least £30 million to build a new primary school, should it wish to do so. I then went back to the council and embarrassed it sufficiently that it had to concede that, after all, when it looked at it again, it had the money to build the primary school. The primary school was then built, but if I had not been the local MP and had not challenged the council, that primary school would not have been built at all, and that would have left all those local parents in a desperate plight. I believed it was important to find out why this had happened. By any standards, this was a terrible mistake by the council. It had profoundly damaging consequences for very many local parents. There were only two possible explanations: either the council officer was grossly incompetent and the councillors were not doing their duty properly on challenging him on it or there was some sort of political manipulation. The Conservative Party in Swindon was desperate to blame everything on the failure of the Labour Government to fund it as it saw fit. Some local residents, perhaps even more cynically, thought that the council was trying to hold the money back to spend in more marginal wards. It may even have been that the Conservative council thought that an incoming Conservative Government would slash capital funding for education, which, indeed, they went on to do, and did not want to commit to something if a new Government were going to withdraw the funding. Whatever the explanation—to this day, I still have no idea what is was—there is a clear public interest in local residents knowing it. To this day, I and other local residents have failed to get any explanation from the council about what happened in 2008. This amendment on its own will not solve such problems. If councils are resolute in covering up their failings, it will not stop them, but it will at least help to reveal councils that are less than diligent in observing the letter and spirit of freedom of information legislation and encourage them to raise their game to the standards of excellent local authorities such as those in Manchester. I stress that this would not be an onerous burden on local authorities. They have the raw data already and are required to keep them under the Freedom of Information Act, so it would be a question only of compiling them. All the local authorities have to do is process them once a year, not quarterly as central government does. Again, the Manchester example shows how easy that would be. Finally, Amendment 181A seeks to improve the transparency of the work of the Housing Ombudsman. At present, complaints about social housing are dealt with by two different ombudsmen. Complaints about housing associations go to the Housing Ombudsman and are not subject to the Freedom of Information Act, while complaints about local authority housing go to the Local Government Ombudsman, who is subject to the Freedom of Information Act. There appears to be no good reason for this distinction, but in any event the Bill proposes that in future there will be a unified complaints system, with both types of complaint going to the Housing Ombudsman. That transfer of functions might be accompanied by a strengthening of the enforcement powers given to the Housing Ombudsman. The Bill allows the Secretary of State by order to give the Housing Ombudsman the power to make determinations that have the force of a court order, yet the Bill contains no provision to bring the ombudsman under the Act. I can imagine only that this is an oversight, because if the Housing Ombudsman remains outside the scope of the Freedom of Information Act, the Bill will lead to a reduction in the public’s right to information, as the Act will no longer apply to the body that was responsible for dealing with housing complaints against local authorities. This amendment would quite simply make the Housing Ombudsman a public authority for the Freedom of Information Act. I beg to move.